NAGPUR: The Republican Party of India (United) leader Ramdas Athawale said here on Saturday that his party would file a separate appeal against the Nagpur bench of Bombay high court's verdict in the infamous Khairlanji massacre case.

He has also sought setting up of a judicial inquiry into the case as there was a political conspiracy to downplay the killing of four members of the Dalit family in the Bhandara village four years ago.

Athawale accused the ruling NCP-Congress in the state of using political influence in the case so as not to press charges against the convicts under the Prevention of Atrocities against SC/ST Act.

"In the lower court in Bhandara as well as in the high court the charges under Atrocity Act were not framed. As a result the culprits got away with it," he said.

"Moreover it is our observation that record of convictions in cases under the said Act is very poor in the state as they are not taken seriously. No wonder, though the law is tough, the culprits go scot free as the state is indifferent towards the plight of the community. That's why we will go to Supreme Court irrespective of the appeal which is likely to be filed by the state in the Khairlanji case," said Athawale.

Athawale also announced that his party is planning to organise a protest march in the city on December 14 in the city during the winter session of the state legislature.

On the Naxalite issue, he appealed to the Leftist rebels to join the national mainstream by shunning the path of violence. He said that the Naxal movement was doing no good to the tribals who are suffering from threats of the Naxals as well as the police.

Expressing satisfaction that Hindus and Muslims showed restraint in accepting the court verdict in the Ayodhya case, he said that the RPI would examine legal avenues to stake a claim on a part of the disputed site in Ayodhya.

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Sitapur: A Dalit was shot dead by some unidentified persons in village Bhagwanpur here, police said on Sunday. The body of one Nandram Pasi,37, was found in the village on Sunday morning. He was allegedly shot in the wee hours by some unidentified persons, police said. Police are trying to ascertain the motive behind the murder and have ruled out election rivalry as the reason. A manhunt has been launched to nab the culprits, they said.

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Staff Correspondent Bangladesh Dalit and Excluded Rights Movement yesterday demanded inclusion of a special article in the constitution to ensure citizens' right, human dignity and social security of the Dalit community.

They raised the demand at a human chain formed in front of the National Museum at Shahbagh in the city.

Members of Dalit community and development activists also demanded issuing of constitutional directives to all government and non-government organisations to remove existing discriminations against Dalit community.

Speaking at the programme, Dalit community leader and President of the movement Mukul Sikder said as many as 55 lakh members of Dalit community are working at different towns and cities in the country in over 100 professions.

They are facing discrimination and humiliation in various phases in the society only because of birth in Dalit community and of professional identities and are compelled to adopt professions that are recognised as of low standard, he added.

On similar demands, the movement's representatives submitted a memorandum on October 5 before the special parliamentary committee for amending the constitution, says a press release.

Nagorik Udyak, a human rights organisation, took part with the movement in arranging the human chain where representatives from Bangladesh Dalit Human Rights and Dalit Nari Forum also participated, expressing their solidarity to the demand.

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The fourth death anniversary of Bahujan Samaj Party(BSP) founder Kanshi Ram on October 9 will be a low key affair this time owing to the imposition of model code of conduct due to the ongoing Panchayat elections.

Sources confirmed that neither there would be any official programme on the occasion nor any announcements would be made by Chief Minister Mayawati. "On the day, the CM would visit Samatamulak Chowk and Kanshi Ram memorial to pay floral tributes to the party founder and her mentor,'' a party leader said.

The state government has already announced public holiday on Kanshi Ram Jayanati. "The party workers have been asked not to come to Lucknow. rather they should concentrate on the Panchayat elections," the party source said. On his third death anniversary in 2009 Chief Minister had announced creation of a district on the name of Kanshi Ram. Besides, she announced 158 projects worth over Rs 3000 crore on the occasion.

Kanshi Ram died on October 9, 2006 after a prolonged illness and next year the BSP got the opportunity to achieve full majority in the UP assembly elections and Mayawati became for Mayawati fourth time the CM of the state.

On his first death anniversary, BSP held a massive' `Savdhan Raho Aagey Badho' rally at Ramadevi maidan with Mayawati projecting herself as the Prime Ministerial candidate.

On the second death anniversary in 2008, Ms Mayawati announced a dozen big projects worth around Rs 4000 crore mostly in the name of Kanshi Ram and other Dalit icons.

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It is essential that identification of OBCs must be totallydisconnected from castes in order to make the backward classclassification in terms of the Constitution. If this is done, censuson caste basis would become unnecessary in order to do justice to OBCsin terms of the Constitutional position.

AT the outset it should be stated that it is indisputable thatreservation in favour of Other Backward Classes (OBCs for short)namely other than Schedule Castes and Scheduled Tribes as permissibleunder clause (4) of Article 15 in the matter of admission toeducational institutions and under clause (4) of Article 16 in thematter of recruitment to civil posts under the Union and the State isthe policy of the Constitution of India. But the question is whetherthe classification of backward classes has to be made on the basis ofcaste or any rational basis other than caste or religion.

In connection with decennial population census, a few demanded thatthere should be caste based census as they consider that backwardclasses should and could be made only on the basis of caste. But, thisdemand has become highly controversial on the ground that it isunconstitutional as both Article 15 and 16 prohibit discrimination asbetween citizens interalia on the ground of religion and caste. Thosewho support caste based census does so in the belief or on the groundthat caste based census would be helpful and furnish a valid basis forreservation of civil posts in favour of OBCs who are inadequatelyrepresented in the State service as permissible under clause (4) ofArticle 16 and in educational institutions as permissible under clause(4) of Article 15 of the Constitution. Those who oppose does so on thebasis of the wording of clause (1) of Article 15 and clause (2) ofArticle 16 which prohibit discrimination on the basis of caste.Despite the opposition to caste based census within the UPA, and alsoby a few others, the Union Government which was in a dilemma for sometime has ultimately yielded to the demand and decided to go ahead toundertake caste based census.

This decision is highly divisive in nature and is sure to have farreaching consequences on the unity and integrity of the people and onthe feeling of fraternity among the citizens as it encourages andincreases caste consciousness which has already inflicted sufficientinjury in the democratic process. Therefore, it has become absolutelynecessary to examine the object and purpose of such census and as towhether caste based census is necessary to provide reservation infavour of OBCs either under Article 15(4) or 16(4) of the Constitutionon the basis of caste?

The founding fathers of the Constitution who were statesman, and whohad an in-depth knowledge about the existence of disparity amongdifferent classes of people in the country and who made charter ofequality as an element of the basic structure of the Constitution,which cannot be altered even by a constitutional amendment, in theirwisdom felt convinced that as all citizens are not similarly situated,in order to ensure equality, it is absolutely necessary to moderatethe disparity among different sections of citizens, by providingreservation in employment under the State and in respect of variousother matters in particular in the matter of admission to educationalcourses, which should be both qualitatively and quantitativelyreasonable so as to do justice to such classes of persons who areunequally situated. Accordingly, the enabling power to providereservations were made in the following manner.

(A) in favour of Scheduled Castes and Tribe, as declared by Presidentof India, who undoubtedly belonged to backward class for historicaland sociological reasons,

(B) in favour of Other Backward Classes as identified by the State.

Thus, provisions of the Constitution is pragmatic and emphatic thatreservation on the basis of caste and tribe may be provided only infavour of those included in the SC/ST list. But, as regards otherbackward classes, they should be identified on any rational basis,other than castes, as discrimination on the ground of caste isprohibited by clause (1) of Article 15 and clause (2) of Article 16.

Despite such specific prohibition in Article 15(1) and 16(2), statesproceeded to make reservation only on the basis of castes.Constitutional validity of backward classes made on the basis of casteby the Mysore State came up for consideration before a ConstitutionBench of the Supreme Court as early as in 1963 in the case of MRBalaji vs. State of Mysore, (AIR 1963 SC 649). The Supreme Courtconsidered its validity of both on qualitative as well as quantitativebasis and held as follows:-

(A) classification of backward classes cannot be made solely on thebasis of caste,

(B) reservation in the nature of things cannot exceed 50 per cent .

"We have considered both the orders in the light of the report and therecommendations made by the Nagan Gowda Committee and we are satisfiedthat the classification of the socially backward classes of citizensmade by the State proceeds on the consideration only of their caseswithout regard to the other factors which are undoubtedly relevant. Ifthat be so, the social backwardness of the communities to whom theimpugned order applies has been determined in a manner which is notpermissible under Art. 15(4) and that itself would introduce aninfirmity which is fatal to the validity of the said classification.(para-25)

"A special provision contemplated by Art. 15(4) like reservation ofposts and appointments contemplated by Art. 16(4) must be withinreasonable limits. .......... Speaking generally and in a broad way, aspecial provision should be less than 50 per cent; how much less than50 per cent would depend upon the relevant prevailing circumstances ineach case. (para-34)

This is the land mark judgment and an important milestone in ourconstitutional history and has been reiterated after 30 years by aconstitution bench of nine judges in the case of Indra Sawhney [1992Supp. (3) SCC 217] The Supreme Court has ruled in various judgments,in view of Article 15(1) and 16(2) that backward classes cannot bemade only on the basis of caste. However, if in a given case most ofthe persons belonging to any caste are found to be educationally andsocially backward, in such a case, name of that particular caste canbe used only for purpose of identification. Further, as even in castesidentified as backward class such of the persons who have becomeforward should be excluded calling them 'creamy layer' who do notreally belong to backward class.

Now, it is a matter of common knowledge on account of variouseconomic, educational and social development programmes undertaken bythe Centre and the states including eleven five year plans and alsoreservation provided under Articles 15(4) and 16(4), substantialpercentage of persons belonging to various castes are no longerbackward. Therefore, if the mandate of Article 15(4) and 16(4) shouldbe obeyed, backward classes have to be identified on rational basisother than religion or castes.

In fact as early as in 1964, in Chitralekha's case [1964 (6) SCR 368]the Supreme Court has observed as follows:

"What we intend to emphasize is that under no circumstances a "class"can be equated to a "Caste", though the caste of an individual or agroup of individual may be considered along with other relevantfactors in putting him in a particular class. We would also like tomake it clear that if in a given situation caste is excluded inascertaining a class within the meaning of Art. 15(4) of theConstitution, it does not vitiate the classification if it satisfiedother tests". (page-389)

In the case of Indra Sawhney the nine judge bench of the Supreme Courtwhich reiterated that the classification of OBCs cannot be made solelyon the basis of caste also considered the question as to whether thebackward class can be identified on the basis of occupation/incomewithout reference to the case and held as follows:-

"In Chitralekha this court held that such an identification ispermissible. We see no reason to differ with the said view in as muchas this is but another method to find socially backward classes.Indeed, this test in the Indian context is broadly the same as the oneadopted by the Mandal Commission..." (para-800)

The principle laid down by the Supreme Court in its majority judgmentin Indra Sawhney's case clearly indicates that the identification ofbackward class could be made on the basis of occupation which wouldcover not merely Hindus who are divided into various castes but alsoto minority religion such as Muslims and Christians. Having regard tothe clear indication flowing from the provisions of the Constitutionin Article 15(4) and 16(4) empowering reservation only in favour ofbackward classes as distinct from castes, the only way of faithfullyimplementing the provisions of the Constitution both having regard toArticle 15(4) and 16(4) read with 15(1) and 16(2) could be to identifybackward class on the basis of occupation such as (i) agriculturists,(ii) agricultural labourers, (iii) occupation involving manual labour,(iv) sweepers, (v) workmen as defined in Industrial Disputes Act andpersons doing manual labour in unorganised sector and so on. Aftermaking such a classification as above, it is also necessary andreasonable to prescribe income limit by providing that only thosepersons among them whose family income is less than the minimumprescribed be categorised as backward class. Such a classification onthe basis of occupation and income test would be inconformity with themandate of the Constitution.

The Hon'ble Supreme Court has also held in para-847 of the judgment inIndra Sawhney case that there is necessity to constitute a permanentstatutory body to examine the correctness of classification made fromtime to time. But unfortunately, it has not been done. Infact, Article340 of the Constitution expressly provides for appointment of aCommission to investigate the condition of backward class. Thisarticle empowers the Commission so appointed to investigate thecondition of socially and educationally backward classes and to makerecommendations to the Union Government or the State Government as thecase may be in order to enable them to take steps which are necessaryto remove their difficulties and confer the benefits that should beextended to them in order to get over the problems with which they arefacing. The earlier the Union and the State Governments take action toidentify backward classes on rational basis and give up the caste,that would be better in the interest of the nation.

The very principle of excluding the creamy layer as laid down in thecase of Indra Sawhney and reiterated in Ashok Kumar Thakur (2008 (6)SCC 1) indicate that in order to make reservation valid under Article15(4) and 16(4) that the caste by itself without exclusion of creamylayer cannot be identified as backward class. This principle laid downin Indra Sawhney's case (1992 Supp. (3) SCC 217) and again reiteratedin the second case of Indra Sawhney Vs. Union of India (2000 (1) SCC168) make it obligatory for the Union and the States to identify thebackward class on a rational basis which as pointed out by the SupremeCourt could be validly done on the basis of occupation.

Therefore, it is essential that identification of OBCs must be totallydisconnected from castes in order to make the backward classclassification in terms of the Constitution. If this is done, censuson caste basis would become unnecessary in order to do justice to OBCsin terms of the constitutional position.

(The writer is Member of Parliament Rajya Sabha, and Former ChiefJustice of Punjab and Haryana High Court and former Governor ofJharkhand and Bihar)

New Delhi/ Lucknow : Uttar Pradesh Chief Minister Mayawati on Friday lauded the media for exercising restraint in the coverage of the Ayodhya title suit verdict pronounced by the Lucknow Bench of the Allahabad High Court on Thursday.

The Bahujan Samaj Party president noted that the media had acted in a non-partisan manner for giving balanced news coverage about the verdict.

The media played a major role in maintaining law and order situation and fostering peaceful atmosphere across the state, she said addressing a conference call here.

A day after Ayodhya verdict, fresh calls for settlement

Besides, she renewed her appeal to people to maintain peace and keep mischief mongers at bay, even as she issued stern warning against elements planning to foment trouble.

She further assured the people, especially Muslims, that the state government would provide full security to secure their lives and property.

Mayawati maintained it was the sole responsibility of the Centre to implement the HC order. "After the HC verdict, if any incident takes places that vitiates the law and order situation, the Centre would be responsible for it," she said.

She referred to the media reports saying the HC verdict was not final and the plaintiff had reportedly talked of moving the Supreme Court to challenge it.

On Thursday, a HC division bench comprising Justices Dharam Veer Sharma, S U Khan and Sudhir Agarwal had by a majority decision ruled that the disputed site be trifurcated.

Observing the disputed site was the birth place of Lord Ram, the bench observed the Hindus, Nirmohi Aakhara and Sunni Central Waqf Board be given 1/3rd of land each.

Ayodhya verdict has a message of coexistence: Jamia VC

The HC had said status quo be maintained at the disputed site for the next three months, while allowing the parties to appeal in the SC.

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